Statutory Union Recognition in North America and the UK: Lessons for Australia?

Briggs, Chris, The Economic and Labour Relations Review : ELRR

Introduction

One of the major weaknesses of the Workplace Relations Act 1996 (Cth) is its failure to meet international standards of freedom of association. Employees do not have an inalienable legal right to freely choose union representation and collective bargaining. The Australian Council of Trade Unions (ACTU) has developed a blueprint for a new bargaining system, including union recognition ballots, following a tour of other English-speaking nations by a group of leading union officials (ACTU 2006). To assess the potential consequences of the ACTU blueprint and a statutory union recognition (SUR) system in Australia, a comparative study of the select group of nations with SUR systems (the United States, Canada and the United Kingdom) is undertaken here to contribute to this debate.

The paper is structured as follows. The first section discusses the origins of the policy vacuum on union recognition and makes the case for reform by illustrating the gap between Australian labour law and international standards on freedom of association. The second section examines the recognition systems of the United States, Canada and the UK in some depth. The third section assesses the ACTU blueprint in the light of the experiences of other English-speaking nations with statutory union recognition (SUR).

The Case for Reform: The Gap Between the Workplace Relations Act and International Standards of Freedom of Association

The origins of the policy vacuum on union recognition lay in an oversight by the labour movement which occurred in the transition to a decentralised bargaining system in the early 1990s. Under the Conciliation and Arbitration Act (1904), unions were defined by statute as 'parties principal' in relation to 'awards' made by the Federal industrial tribunals. As 'parties principal', registered unions had the right to initiate disputes on behalf of not only their members but entire categories of employees within their recognised areas of coverage. Employers did not have to recognise unions at the enterprise-level but unions could apply to the industrial tribunals to bind employers to multi-employer awards applying to union and non-union employees. Multi-employer regulation and the capacity of the industrial tribunals to arbitrate legally binding settlements to disputes removed much of the incentive and opportunity for union evasion (Briggs 2006:865). Alongside the introduction of enterprise bargaining, the Industrial Relations Reforms Act 1993 (Cth.) repositioned awards as a 'safety net' underpinning enterprise agreements. Enterprise bargaining replaced awards as the primary mechanism for setting wages and conditions However, as the Asahi Case (1) confirmed in 1995, unions did not have 'party-principal' status in relation to enterprise bargaining. As McCallum (2002: 235) has argued:

... the Keating Government and the trade union movement did not
squarely face the issue of anti-union employers refusing to bargain
with trade unions. More importantly they did not appreciate that
trade union bargaining at the level of the employing undertaking
was of a different juridical nature from obtaining award coverage
through an industry-wide arbitrated settlement by the Federal
Commission.

No legal mechanism for union recognition in enterprise bargaining was established by the Australian Labor Party, leaving a void to be exploited by anti-union employers.

Subsequently, the conservative Liberal-National Party government (1996-) has built on this void. Under the Workplace Relations Act (WRA), there are three key formal principles which frame the bargaining system. Firstly, only single-employer agreements are recognised (the monopoly of enterprise bargaining). Secondly, the WRA is formally based on a principle of neutrality towards different types of workplace agreements (union, non-union, individual) to allow the parties to choose their preferred agreement. …

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